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Series  1925-26  December  18,  1925 

No.  6 

EXTRATERRITORIALITY  IN  CHINA 


Profound  changes  in  the  whole  basis  of 
China’s  existing  relations  with  the  other  Powers 
are  taking  place  with  startling  rapidity.  Within 
the  past  few  weeks  the  Pov/ers  have  promised  to 
restore  tariff  autonomy  to  China.  Within  the  next 
few  days  China  and  the  Treaty  Powers  v/ill  begin  to 
examine  the  larger  question  of  Extraterritoriality — 
the  principal  under  which  nationals  of  Treaty 
Powers  in  China  are  subject  to  their  own  laws  and 
not  to  those  of  China.  This  Report  contains  a 
factual  statement  of  the  origin  of  extraterri- 
toriality and  the  existing  treaty  provisions,  as 
well  as  China's  objections  and  the  position  of  the 
Powers.  It  covers  the  following  points: 

Treaty  Basis  of  Extraterritoriality 

Why  Extraterritoriality  was  Established 

China's  Efforts  to  Abolish  the  System 

Advantages  and  Disadvantages  to  Foreigners 

China's  Case  for  Abolition 


THE  COMMISSION  ON  EXTRATERRITORIALITY 

The  Commission  which  meets  in  Peking  December  18th  has  been  called 
in  pursuance  of  a "resolution  regarding  extraterritoriality  in  China", 
adopted  at  the  Washington  Conference  on  December  10,  1921.  The  govern- 
ments represented  at  the  Washington  Conference,  other  than  China,  agreed 
to  "establish  a Commission  (to  which  each  Government  shall  appoint  one 
member)  to  inquire  into  the  present  practice  of  extraterritorial  juris- 
diction in  China,  and  into  the  laws  and  the  judicial  system  and  the 
methods  of  judicial  administration  of  China,  with  a view  to  reporting 
to  the  Governments  of  the  several  Powers  above  named  their  findings  of 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 
Columbia  University  Libraries 


https://archive.org/details/extraterritorialOOfore 


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fact  in  regard  to  these  matters,  and  their  recommendations  as  to  such 
means  as  they  may  find  suitable  to  improve  the  existing  conditions  of  the 
administration  of  justice  in  China,  and  to  assist  and  further  the  efforts 
of  the  Chinese  Government  to  effect  such  legislation  and  judicial  reforms 
as  would  warrant  the  several  Powers  in  relinquishing,  either  progressively 
or  otherwise,  their  respective  rights  of  extraterritoriality.” 

The  Treaty  Powers  to  be  represented  on  the  Commission  are:  United 
States,  Great  Britain,  France,  Italy,  Netherlands,  Belgium,  Japan  and 
Portugal,  as  signatories  of  the  Washington  Conference  resolution,  and 
Denmark,  Sweden,  Spain,  Peru  by  special  adherence.  The  Commission  is 
instructed  to  submit  its  report  and  recommendations  within  one  year  after 
its  first  meeting.  Each  Power  is  entirely  free  to  accept  or  reject  all  or 
any  portion  of  the  recommendations;  but  in  no  case  is  it  to  make  acceptance, 
in  whole  or  in  part,  dependent  on  any  special  concession  by  China. 

CHINA’S  POSITION 


China’s  official  position  with  regard  to  the  Commission  is  set 
forth  in  another  resolution  of  the  Washington  Conference,  which  states 
"that  China. .. expresses  its  satisfaction  with  the  sympathetic  disposi- 
tion of  the  Powers  hereinbefore  named  in  regard  to  the  aspiration  of  the 
Chinese  Government  to  secure  the  abolition  of  extraterritoriality  in 
China,  and  declares  its  intention  to  appoint  a representative  who  shall 
have  the  right  to  sit  as  a member  of  the  said  Commission,  it  being  under- 
stood that  China  shall  be  deemed  free  to  accept  or  to  reject  any  or  all 
of  the  recommendations  of  the  Commission.  Furthermore,  China  is  prepared 
to  cooperate  in  the  work  of  this  Commission  and  to  afford  to  it  every  pos- 
sible facility  for  the  successful  accomplishment  of  its  tasks." 

DEFINITION  OF  EXTRATERRITORIALITY 

In  simple  terms,  extraterritoriality  is  defined  by  H.  B.  Morse  as 
that  principle  by  which  "the  foreign  resident  in  China  is  subject  to  no 
provision  of  the  law  of  China  either  as  to  his  person  or  to  his  property 
(except  that  in  the  tenure  of  land  the  lex  loci  must  apply),  but  at  all 
times  and  in  all  places  is  entitled  to  the  protection  of  his  own  national 
law  administered  by  his  own  national  officials." 

Another  authority,  Charles  S.  Lobingier,  former  judge  of  the 
United  States  Court  in  Shanghai,  says;  "Extraterritoriality,  or  more 
properly  extraterritorial  jurisdiction  is  a system  under  which  a sovereign 
power  retains  full  control  of  its  nationals  in  territory  outside  its  own. 
This  necessarily  excludes  the  exercises  of  control  over  the  same  national 
by  the  sovereign  power  of  the  territory  in  which  he  is  located.  In  other 
words,  the  national  remains  under  his  own  laws  and  institutions  instead 
of  becoming  amenable  to  those  of  the  locality." 

"TREATY  POWERS"  IN  CHINA 


In  relation  to  China,  the  term  "Treaty  Powers"  is  generally  used 
to  designate  not  all  the  Powers  which  have  treaty  relations  with  China, 
but  only  those  which  have  extraterritorial  privileges.  The  following 
sixteen  Powers  enjoy  extraterritorial  rights  today:  Belgium,  Brazil, 


i 


f 


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Denmark,  France,  Great  Britain,  Italy,  Japan,  Mexico,  Netherlands,  Norway, 
Peru,  Portugal,  Spain,  Sweden,  Switzerland,  United  States.  The  other 
Powers,  including  Germany,  Austria,  Russia  and  most  of  the  Lat in-American 
republics,  have  no  extraterritorial  privileges  in  China,  although  some 
of  them  have  treaties  with  China.  Before  the  war,  Germany,  Russia  and 
Austria-Hungary  enjoyed  extraterritorial  rights. 

TREATY  BASIS  OF  EXTRATERRITORIALITY 


Extraterritoriality  has  been  in  existence  in  China  for  eighty-two 
years.  Although  reciprocal  extraterritorial  jurisdiction  was  accepted  in 
the  treaty  of  1689  with  Russia,  no  unilateral  agreement  was  made  by  China 
until  after  the  Opium  War  in  1842. 

In  the  "general  regulations"  annexed  to  the  supplementary  treaty 
with  Great  Britain  in  1843,  provision  was  made  for  punishment  of  British 
criminals  by  British  officials  under  British  law.  The  principle  of  extra- 
territoriality was  first  definitely  applied,  however,  in  the  Treaty  of 
Wanghia,  1844,  with  the  United  States,  Articles  21  and  25  of  which  provide 
that  subjects  of  China,  guilty  of  criminal  acts  towards  citizens  of  the 
United  States  shall  be  arrested  and  punished  by  the  Chinese  authorities 
according  to  the  laws  of  China;  and  citizens  of  the  United  States  commit- 
ting any  crime  in  China  shall  be  tried  and  punished  only  by  the  Consul,  or 
other  American  functionary,  according  to  the  laws  of  the  United  States. 
They  further  provide  that  all  questions  of  property  or  person,  arising 
between  citizens  of  the  United  States  in  China,  shall  be  regulated  by  the 
authorities  of  their  own  Government.  Controversies  between  citizens  of 
the  United  States  and  subjects  of  any  other  Government  shall  be  regu- 
lated by  the  treaties  existing  between  the  United  States  and  such  Govern- 
ments respectively,  without  interference  on  the  part  of  China. 

Since  this  time  extraterritorial  privileges  have  been  extended  and 
clarified  in  a number  of  treaties  between  China  and  the  Powers.  In  the 
Chef 00  Agreement  of  1876,  between  China  and  Great  Britain,  Section  II, 
Clause  3,  it  was  agreed  that: 

"Whenever  a crime  is  committed  affecting  the  person  or  property 
of  a British  subject,  whether  in  the  interior  or  at  open  ports, 
the  British  Minister  shall  be  free  to  send  officers  to  the  spot 
to  be  present  at  the  investigation. ...  It  is  further  understood  that, 
so  long  as  the  laws  of  the  two  countries  differ  from  each  other, 
there  can  be  but  one  principle  to  guide  judicial  proceedings  in 
mixed  cases  in  China,  namely,  that  the  case  is  tried  by  the  official 
of  the  defendant's  nationality,  the  official  of  the  plaintiff's 
nationality  merely  attending  to  watch  the  proceedings  in  the  interests 
of  justice. ..  .The  law  administered  will  be  the  law  of  the  nationality 
of  the  officers  trying  the  case." 

Additional  provisions  were  enumerated  in  treaties  with  the  United 
States  and  other  Powers.  By  the  operation  of  the  most-favored  nation 
clause,  as  among  the  Powers  enjoying  extraterritorial  privileges  in  China, 
treaty  provisions  with  one  Power  have  become  automatically  effective  for 
all  other  Treaty  Powers. 


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THE  EXTRATERRITORIAL  SYSTEM— GENERAL  SUMMARY 

The  situation  created  by  the  extraterritorial  provisions  may  be 
summarized  briefly  as  follows; 

1,  All  controversies  in  which  no  foreigners  are  involved  are  tried 
in  Chinese  courts  according  to  Chinese  law.  (Cases  before  the 
mixed  court  in  Shanghai  are  an  exception  to  this  general  rule), 

2,  Controversies  between  two  or  more  nationals  of  the  same  Treaty 
Power  are  tried  in  the  consular  courts  or  other  courts  of  that 
Power,  and  the  law  applied  is  that  of  the  Power  concerned, 

Chinese  police  officials  may  make  arrests,  in  criminal  cases, 
but  the  offenders  must  be  turned  over  to  their  respective  con- 
suls. 

3,  Controversies  between  nationals  of  different  Treaty  Powers 
are  determined,  not  by  Chinese  courts,  but  by  the  authorities 
and  the  laws  of  the  States  concerned  according  to  agreements  be- 
tween these  States. 

4,  Controversies  between  nationals  of  non-Treaty  Powers  and 
nationals  of  Treaty  Powers  in  which  the  latter  are  defendants, 
are  determined  by  the  authoorities  of  the  Treaty  Powers.  In 
civil  or  criminal  suits  in  which  the  non-Treaty  Power  nationals 
are  defendants,  jurisdiction  is  in  the  Chinese  courts.  Contro- 
versies to  which  all  the  parties  are  non-Treaty  Power  nationals, 
or  in  which  they  appear  as  plaintiffs  or  complainants  against 
Chinese  defendants,  are  settled  in  Chinese  tribunals  under 
Chinese  law, 

5,  Controversies  between  Chinese  and  nationals  of  Treaty  Powers 
are  determined  by  the  tribunals  of  the  defendant,  and  the  law 
of  his  country  is  applied, 

REASONS  FOR  ESTABLISHMENT  OF  EXTRATERRITORIALITY 


The  conditions  which  lead  to  establishment  of  extraterritoriality 
in  China  were  summarized  as  follows  by  Sir  Robert  Hart,  Inspector  General 
of  the  Chinese  Maritime  Customs  from  1863  to  1911:  "When  the  first  treaties 
were  made  China  had  had  no  experience  of  international  dealings  and  no 
acquaintance  with  international  relations,  but  the  foreigners'  knowledge 
of  the  many  differences  between  Chinese  and  foreign  action  in  matters 
affecting  property  or  person  was  already  of  a kind  to  make  him  unwilling 
to  accept  Chinese  procedure:  it  was,  therefore,  wise  and,  at  that  time, 
right  for  the  foreign  negotiator  to  stipulate  that  questions  affecting 
the  persons  or  property  of  foreigners  should  be  arranged  by  the  foreign 
authority,  and,  on  the  other  hand,  the  Chinese  officials  who  consented 
to  that  arrangement  without  stipulating  for  the  various  limitations,  by 
which  it  ought  to  have  been  accompanied,  can  hardly  be  blamed  for  their 
want  of  political  foresight,  even  had  they  been  free  to  refuse  acquies- 
cence,. ..  .When  China  acquiesced  in  various  treaty  stipulations  it  never 
occurred  to  her  that  what  she  was  conceding  was  what  now  goes  to  consti- 
tute what  is  now  termed  extraterritoriality.  The  stipulations  gradually 


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showed  their  shape,  and  what  they  concede  and  how  such  concessions  operate 
on  the  country  that  grants  them,  are  now  increasingly  understood  in 
China. ” 


H,  B.  Morse  in  "The  Trade  and  Administration  of  China"  says; 

"The  principal  grounds  assigned  by  the  foreigners  at  Canton  generally 
and  the  British  in  particular  for  opposing  the  course  of  Chinese  law 
v/ere  these;  that  the  provisions  of  Chinese  law  were  unjust,  because  of 
the  indiscrimination  between  intentional  and  unintentional  killing; 
that  the  Chinese  courts  did  not  often  discriminate,  with  respect  to 
Europeans  at  any  rate,  between  accidental  and  wilful  homicide;  that 
the  Chinese  laws  as  they  stood  then  were  too  harsh  and  severe  in  punish- 
ments, especially  for  offenses  against  the  person;  that  the  doctrine 
of  extensive  responsibility  upheld  by  Chinese  law  in  criminal  matters  is 
objectionable;  that  there  was  much  maladministration  of  justice  in  the 
Chinese  courts,.,, 

"The  law  of  China  was  not  the  law  of  the  West;  the  real  point  at 
issue,  however,  was  not  the  difference  in  law  but  the  uncertainty  in  its 
application — or,  in  plain  terms,  the  certainty  of  corruption  and  bias  in 
its  administration," 

CHINA'S  EFFORTS  TO  ABOLISH  EXTRATERRITORIALITY 


1.  Early  Efforts 

^ The  consequences  of  extraterritoriality  were  not  at  first  apparent 

to  the  Chinese,  as  there  were  only  a handful  of  aliens  in  China  at  the 
time  the  first  treaties  were  signed.  But  as  the  foreign  populations 
increased,  and  new  treaty  ports  were  created,  the  evils  of  the  system, 
from  the  viewpoint  of  China,  revealed  themselves.  As  early  as  the 
seventies  the  Chinese  Government  began  to  make  efforts  for  modification 
of  the  system,  and  opposition  to  extraterritoriality  became  more  persis- 
tent each  year. 

2.  Promises  of  Abolition  by  the  Powers 

Some  of  the  Powers  officially  recognized  China's  desire  to  abolish 
extraterritoriality  as  early  as  1902-3,  pledging  themselves  to  surrender 
those  rights  when  satisfied  as  to  the  state  of  Chinese  laws.  Article  12 
of  the  British  commercial  treaty  of  September  5,  1902  (the  MacKay  Treaty) 
contains  the  first  promise  of  abolition.  It  states  that  "China  having 
expressed  a strong  desire  to  reform  her  judicial  system  and  to  bring  it 
into  accord  with  that  of  Western  nations.  Great  Britain  agrees  to  give 
every  assistance  to  such  reform,  and  she  will  also  be  prepared  to  relin- 
quish her  extraterritorial  rights  when  she  is  satisfied  that  the  state  of 
the  Chinese  laws,  the  arrangements  for  their  administration,  and  other 
considerations  warrant  her  in  so  doing," 

A similar  clause  appears  in  the  commercial  treaties  of  1903  with 
the  United  States  and  with  Japan.  Sweden  has  declared  in  her  treaty  of 

I''  1908  with  China  that  "as  soon  as  all  the  other  Treaty  Powers  have  agreed 

to  relinquish  their  extraterritorial  rights,  she  also  will  be  prepared 
to  do  so." 


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3,  China *s  Proposals  at  the  Paris  Conference 

The  Chinese  Delegation  at  the  Paris  Peace  Conference  asked  the 
Powers  to  agree  to  abolition  of  the  entire  system  of  extraterritoriality 
as  soon  as  China  should  put  into  force  her  five  new  codes  and  complete 
the  establishment  of  new  courts  in  all  the  districts  where  foreigners 
reside.  The  Chinese  Delegation  asserted  that  China  would  be  able  to  do 
this  by  the  end  of  the  year  1924. 

The  Delegation  furthermore  asked  the  Powers  to  agree  to  the  follow- 
ing immediate  changes  in  the  present  system; 

”a.  That  every  mixed  case,  civil  or  criminal,  where  the  defendant 
or  accused  is  a Chinese,  be  tried  and  adjudicated  by  Chinese 
courts  without  the  presence  or  interference  of  any  consular 
officer  or  representative  in  the  procedure  or  judgment, 

"b.  That  the  warrants  issued  or  judgments  delivered  by  Chinese 
courts  may  be  executed  within  the  concessions  or  within  the 
precincts  of  any  building  belonging  to  a foreigner,  without 
preliminary  examination  by  any  consular  or  foreign  judicial 
officer. " 

These  demands  were  not  granted  by  the  Powers  at  the  Peace  Conference. 

4.  China's  Request  at  the  Washington,  Conference 

At  the  Washington  Conference  Dr.  Wang  Chung-Hui,  on  behalf  of  the 
Chinese  Delegation,  stated  that  he  had  made  his  observations  regarding 
the  objections  to  extraterritoriality  "not  for  the  purpose  of  asking  for  an 
immediate  and  complete  abolition  of  extraterritoriality,  but  for  the 
purpose  of  inviting  the  Powers  to  cooperate  with  China  in  taking  initial 
steps  toward  improving  and  eventually  abolishing  the  existing  system, 
which  is  admitted  on  all  hands  to  be  unsatisfactory  both  to  foreigners 
and  Chinese." 

Dr.  Wang  asked,  in  the  name  of  the  Chinese  Delegation,  that  the 
Powers  now  represented  at  this  Conference  agree  to  relinquish  their  extra- 
territorial rights  in  China  at  the  end  of  a definite  period.  In  the 
meanwhile,  he  proposed  that  the  above-mentioned  Powers  should  at  a date 
to  be  agreed  upon,  designate  representatives  to  enter  into  negotiations 
with  China  for  the  adoption  of  a plan  for  a progressive  modification  and 
ultimate  abolition  of  the  system  of  extraterritoriality  in  China,  the 
carrying  out  of  which  plan  was  to  be  distributed  over  the  above-mentioned 
period.  In  response  to  these  Chinese  proposals  the  other  Powers  repre- 
sented at  the  Conference  adopted  the  resolution  referred  to  above. 


5,  Appointment  of  the  Commission 

At  China's  request  the  meeting  of  the  Commission  on  Exterritoriality 
was  postponed  for  one  year.  Two  subsequent  postponements  were  made  at 
the  request  of  the  European  Powers.  Finally,  however,  in  a note  of  June 


1 


Li 


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24,  1925,  the  Chinese  Government  asked  that  steps  should  be  taken  to 
modify  the  existing  treaties  as  far  as  the  customs  tariff  and  extraterri- 
torial rights  are  concerned.  In  identic  notes  dated  September  4,  1925, 
the  nine  Powers  which  had  adopted  the  Washington  resolution  expressed 
readiness  to  appoint  their  representatives  to  the  Commission  on  extra- 
territoriality provided  for  in  that  resolution.  These  Powers,  as  well 
as  the  Powers  which  have  adhered  to  the  resolution,  have  now  appointed 
their  commissioners  and  the  Commission  will  meet  on  December  18th 
at  Peking. 

JURIDICAL  POSITION  OF  NON-TREATY  POWER  NATIONALS 


The  effect  of  abolition  on  the  position  of  Russians,  Germans  and 
nationals  of  other  Powers  who  have  lost  or  abrogated  their  extraterri- 
torial rights  is  important  in  any  consideration  of  extraterritoriality. 

It  is  impossible  to  get  impartial  evidence  as  to  whether  the  nationals 
of  these  Powers  have  received  just  treatment  under  Chinese  law.  Recently, 
however,  the  privilege  of  pleading  in  Chinese  courts  has  been  extended 
to  the  nationals  of  all  non-Treaty  Powers. 

By  special  provision  in  the  Sino-German  Agreement  of  May  20,  1921, 
"lawsuits  of  Germans  in  China  shall  be  tried  in  the  modern  courts,  with 
the  right  to  appeal,  and  in  accordance  with  the  regular  legal  procedure. 
During  the  period  of  litigation,  the  assistance  of  German  lawyers  and 
interpreters  who  have  been  duly  recogni25ed  by  the  court,  is  permitted." 

As  regards  Russians  in  China,  the  Russo-Chinese  Agreement  of  May  31, 
1924,  states  that  "the  Government  of  the  Union  of  the  Soviet  Socialist 
Republics  agrees  to  relinquish  the  rights  of  extraterritoriality  and  of 
consular  jurisdiction."  There  is  further  provision  for  a conference  at 
which  the  two  Governments  shall  establish  "equitable  provisions  for  the 
regulation  of  the  situation  created  for  the  citizens  of  the  U.S.S.R.  by 
the  relinquishment  of  the  rights  of  extraterritoriality  and  consular 
jurisdiction,  it  being  understood,  however,  that  the  nationals  of  the 
Government  of  the  U.S.S.R.  shall  be  entirely  amenable  to  Chinese  juris- 
diction." The  Conference  formally  opened  on  August  26,  1925. 

OTHER  RIGHTS  NOT  AFFECTED  BY  ABOLITION 


There  are  a number  of  privileges  enjoyed  by  many  of  the  Powers, 
under  special  agreements  with  China,  which  would  not  be  affected  by 
abolition  of  extraterritoriality.  The  more  important  include  the  right 
of  foreign  ships  and  warships  to  operate  in  China's  inland  waters;  the 
right  of  foreign  merchants  in  certain  Treaty  Ports  to  form  their  own 
municipal  government;  the  right  to  maintain  police  forces  in  foreign 
settlements,  and  the  right  to  maintain  troops  in  China  as  provided  in 
the  Protocol  of  1901. 

DISADVANTAGES  OF  THE  EXTRATERRITORIAL  SYSTEM  TO  FOREIGNERS 

The  advantages  to  foreigners  of  the  extraterritorial  system  in 
China  have  been  indicated  in  the  treaty  provisions  quoted  above.  There 
remain  a number  of  disadvantages  to  foreigners  which  may  be  summarized 
as  follows; 


(I 


(I 


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1.  As  long  as  extraterritoriality  is  maintained  it  is  practically 
impossible  for  the  Chinese  Government  to  open  up  the  entire 
country  to  trade,  manufacture  and  residence  by  the  foreigner. 

2.  The  extraterritorial  system  means  a multiplicity  of  courts. 
Each  nation  is  obliged  to  maintain  tribunals  for  its  own 
nationals  at  all  of  the  Treaty  Ports. 

3.  The  courts  are  presided  over  by  officials  who  are  not,  for  the 
most  part,  trained  in  the  law. 

4.  The  system  tends  to  create  an  anti-foreign  feeling. 

5.  Under  the  extraterritorial  system  there  is  great  difficulty 
in  determining  the  law  to  be  applied  by  the  foreign  courts. 

6.  The  fact  that  extraterritorial  courts  necessarily  have  only 
a personal  jurisdiction  is  a very  serious  disadvantage. 

CHINESE  ARGUMENTS  FOR  ABOLITION  OF  EXTRATERRITORIALITY 

1.  Disadvantages  of  Extraterritoriality  to  China 

The  main  arguments  for  abolition  or  substantial  modification 
of  extraterritoriality  were  summarized  as  follows  at  the  Washington 
Conference  by  Dr.  Wang,  of  the  Chinese  Delegation; 

"a.  In  the  first  place,  it  is  in  derogation  of  China's  sovereign 
rights,  and  is  regarded  by  the  Chinese  people  as  a national 
humiliation. 

”b.  There  is  a multiplicity  of  courts  in  one  and  the  same  locality, 
and  the  interrelation  of  such  courts  has  given  rise  to  a legal 
situation  perplexing  both  to  the  trained  lawyer  and  to  the 
layman. 

"c.  Disadvantages  arise  from  the  uncertainty  of  the  law.  The 

general  rule  is,  that  the  law  to  be  applied  in  a given  case 
is  the  law  of  the  defendant's  nationality,  and  so,  in  a com- 
mercial transaction  between,  say,  X and  Y of  different  nation- 
alities, the  rights  and  liabilities  of  the  parties  vary  accord- 
ing as  to  whether  X sued  Y first,  or  Y sued  X first. 

"d.  When  causes  of  action,  civil  or  criminal,  arise  in  which 

foreigners  are  defendants,  it  is  necessary  for  adjudication 
that  they  should  be  carried  to  the  nearest  consular  court, 
which  may  be  many  miles  away;  and  so  it  often  happens  that 
it  is  practically  impossible  to  obtain  the  attendance  of  the 
necessary  witnesses,  or  to  produce  other  necessary  evidence. 

"e.  Finally,  it  is  a further  disadvantage  to  the  Chinese  that 

foreigners  in  China,  under  cover  of  extraterritorality,  claim 
immunity  from  local  taxes  and  excises  which  the  Chinese  them- 
selves are  required  to  pay.  Sir  Robert  Hart,  who  worked  and 
lived  in  China  for  many  years,  had  said  in  his  book,  'These 


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from  the  Land  of  Sinim,’  'The  extraterritoriality  stipulation 
may  have  relieved  the  native  official  of  some  troublesome 
duties,  but  it  has  always  been  felt  to  be  offensive  and  humilia- 
ting, and  has  ever  a disintegrating  effect,  leading  the  people, 
on  the  one  hand,  to  despise  their  own  Government  and  officials, 
and,  on  the  other,  to  envy  and  dislike  the  foreigner  withdrawn 
from  native  control.'" 

2.  Chinese  Progress  in  Legal  Reform 

Dr.  Wang  further  stated  that  whereas  it  was  a matter  of  opinion 
whether  or  not  Chinese  laws  had  attained  the  standard  to  which  she  was 
expected  to  conform,  it  was  impossible  to  deny  that  she  had  made  great 
progress  on  the  path  of  legal  reform.  A law  codification  mission  for  the 
compilation  and  revision  of  laws  had  been  sitting  since  1904.  Five  codes 
had  been  prepared,  some  of  which  had  already  been  put  into  the  criminal 
code,  in  force  since  1912,  the  code  of  all  civil  procedure  and  the  code 
of  criminal  procedure,  both  of  which  had  just  been  promulgated,  and  the 
commercial  code,  part  of  which  had  been  put  into  force.  Dr.  Wang  said 
that  these  codes  had  been  prepared  with  the  assistance  of  foreign  experts 
and  were  based  on  the  principle  of  modern  jurisprudence.  He  mentioned 
especially  a law  of  1918,  called  "Rules  for  the  Application  of  Foreign 
Laws,"  which  dealt  with  matters  relating  to  private  international  law 
and  under  which  foreign  law  is  given  ample  application.  He  declared  also 
that  a new  system  of  law  courts  had  been  established  in  1910,  the  judges 
of  which  are  all  modern  trained  lawyers. 

According  to  the  China  Year  Book,  1925,  the  Law  Codification 
Commission  has  completed  the  final  drafting  of  the  penal  code,  the  penal 
procedure  code  and  the  civil  procedure  code.  The  two  procedure  codes  were 
promulgated  in  1921;  the  revized  penal  code  is  awaiting  promulgation. 

The  Commission  is  at  present  engaged  in  the  drafting  of  commercial  laws. 
While  not  all  of  the  new  laws  have  been  uniformly  applied  throughout 
China,  "it  cannot  be  denied  that  they  constitute  a marked  advance  along 
the  path  of  legal  reform." 

ATTITUDE  OF  POWERS 


With  reference  to  the  attitude  of  the  major  foreign  Powers  concerning 
the  abolition  of  extraterritoriality,  it  was  emphasized  at  the  Washington 
Conference  that  it  is  a question  "of  fact  rather  than  of  principle," 
inasmuch  as  the  United  States,  Great  Britain  and  Japan  had  all  defined 
the  principle  of  relinquishing  extraterritorial  rights  "when  satisfied 
that  the  state  of  China's  laws,  the  arrangements  for  their  administration 
and  other  considerations"  would  warrant  them  in  so  doing.  In  the  identic 
notes  presented  Sept.  4,  1925,  to  the  Chinese  Government  by  the  Powers 
concerned,  "The  necessity  of  giving  concrete  evidence  of  its  ability 
and  willingness  to  enforce  respect  for  the  safety  of  foreign  lives  and 
property,  and  to  suppress  disorders  and  anti-foreign  agitations — " was 
impressed  upon  the  Chinese  Government. 

To  investigate  the  extent  to  which  China  has  achieved  judicial 
reform  and  provided  security  to  foreign  lives  and  property,  is  the  task 
assigned  the  Commission  on  Extraterritoriality. 


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